Friday, September 5, 2014

The power to tax

The start of a new semester means the return to fundamentals in taxation for me, which always begins with a discussion of the power to tax. Yesterday I asked my students: could Queen Elizabeth say hey Canadians, I notice you still have my face on your dollar and you've got a nice surplus shaping up; over here in England it's all austerity and program cuts. Mind helping out a bit? General consensus: she might as a legal matter be able to tax Canadians to help the Brits out, but she won't. Hmmm. During the discussion a student informed me that Canadians pay more for monarchical services than the Brits do. Well, sharing is caring.

Relatedly and on a more scholarly note, a recent twitter conversation brought me to a chapter in a book on socio-legal tax research (thanks to Martin Hearson for starting that conversation and Judith Freedman for making this recommendation). The book is called Taxation: a Fieldwork Research Handbook, edited by Lynne Oats, and the chapter I had my eye on today is entitled Tea Parties, Tax, and Power, by Rebecca Boden. Boden writes:

History...points to a longstanding power relationship between rulers and those they rule that is articulated through tax regimes. States, whether feudal or modern, need money to operate, to pursue their various programmes, from war to welfare, As citizens may be unwilling to relinquish their money voluntarily, the state must have powers to require payment, with sanctions for non-compliance. By the same token, this power is held in balance in democracies by the principle of consent, exercised through representation. Ultimately, taxpayers give their consent to be dominated and have their money taken away from them.

This contingent nature of the state's powers in taxation - taxation by "consent"- chimes with Foucault's notion that power can never be absolute (Foucault 1977). No, Foucault argues, is power only hierarchical or structural, rather it works in a capillary fashion. As such, the analysis of such power relationships is central to the critical tax project - only by viewing tax structures, policies, and practice through the prism of power relationships that change them can we understand how and why they are constituted and what their effects are likely to be.

There is much more in the chapter to reflect upon, but I found this intro intriguing. In my view a lot of mischief takes place in the subtle--maybe you missed it--transition from the use of the word "citizen" to the use of the word "taxpayer." This is a transition all too many scholars make without even noticing it, yet it masks a world of ideology and assumption that frame and define how we think about tax today.

The power to define the taxpayer permeates contemporary tax policy discussion. The question of who can tax whom is one that could or should involve theory but while the scholars talk it over, reality plays out in economic might. In an intro to tax policy principles that I recently prepared for my tax policy course, I wrote:

Perhaps because taxation has been so connected to
state-building, most scholars closely associate the act of taxation with the
state. Some even go so far as to argue that taxation is a fundamental right belonging
to the state as sovereign, often citing Thomas Hobbes for the proposition that “[t]hese
are the rights which make the essence of sovereignty … the power of raising
money”.None have offered theoretical
grounds for the claim that states are in fact holders of rights, however.

We observe throughout history that states exercise powers
(mostly through military and economic might), and only declare rights for
themselves upon successful domination (such as in constitutions and charters). This observation leads to the
likelihood that taxation is not anyone’s right but rather it is a constructed
reality, coming about solely by and through human experience. This would explain why so much has to be done to both justify as a matter of
theory - and entrench as a matter of custom - the state’s authority to tax.

We don't have to work too hard to think of a few examples where defining the taxpayer is an exercise in claiming authority, which fundamentally depends on power. FATCA is an obvious one; anti-inversions, BEPS, and the OECD common reporting standard are less obviously but equally so.

With FATCA, the US is using its sheer economic clout to get the whole world involved in chasing what it deems to be "US persons" for their tax tribute, without any discussion about whether the state's unilateral conferring of citizenship constitutes consent to (permanent and worldwide) taxation. Indeed, it continues to erect ever-higher barriers to shedding that status, without a single policy discussion at any level of government about the merits of this action. Those who think not can be expected to resist per Foucault, or, if it suits your taste better, Locke:

[People] therefore in society having property, they have such a right to the goods, which by the law of the community are their's, that no body hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which another can by right take from me, when he pleases, against my consent.

At the OECD, the common reporting standard, ostensibly modeled on FATCA but in fundamental principles not at all like FATCA, is all about making sure the "right" government gets the info it needs to exert its power over "its" taxpayers. Same idea: a state claims the authority to tax people that live within its territory, but other states have the power to thwart that exercise. (Different in fundamentals than FATCA for two reasons: (1) finding implied consent to tax is a given for residents of a state and (2) the OECD is not currently suggesting countries use economic sanctions to force others to cooperate).

The anti-inversion and BEPs issues are similarly about exerting power over a "taxpayer." Despite bemoaning their apparent helplessness in preventing corporate US persons becoming corporate non-US persons, US lawmakers clearly claim the authority to intervene and they likely have the power, too. But, this involves erecting higher and higher walls to keep the "taxpayers" inside. Internationally, discussions about the global problem of multinational tax dodging focus on the failure of the state to tax corporate persons that come in to the jurisdiction to do business. At the OECD, the BEPS project is very much about who belongs to who, so we can decide what belongs to who. Source and residence as tax concepts have always been about power and they have always been explained with ideas about authority and consent.

Globally, discussions about both corporate and personal income taxation are being forced to focus more and more on unanswered questions about the power to tax, and the issues of authority and consent that are raised when power is exerted and when it is resisted. The full Boden chapter is thus definitely recommended reading and I'm working my way through the rest of the book, which looks promising in several respects. More to come on this subject.

2 comments:

Great post, Allison. I'm reading another book (though it's not easy because the kindle version is very poorly formatted) called Compliance Strategy for Regulators by Telita Snyckers-Norgaard and she makes a very strong statement about choice and real limitations on regulatory (state) power. It's common sense but how many times does an argument about the legitimacy of a particular regulator regime end with people shouting, "It's the law!" :-)

"It would be foolish to lull ourselves into a false sense of security that those we regulate are in fact compliant, simply because legislation requires them to be - and, yet, some regulators do exactly that.

It would be equally foolish to assume that those we regulate do not have choices when it comes to compliance. In fact, the people we seek to regulate have many compliance-related choices: they can choose whether to comply, or the extent to which they comply. They can choose whether to comply early, or in the nick of time. They can choose to engage with the regulatory system in a constructive manner, in order to improve it, or to disengage from the regulator and their obligations.

Practically speaking, in most environments, there is a very good chance of non-compliance going undetected. Regulators typically have limited funding and limited staffing.""

Thanks for the comment Victoria. I could not agree with you more when you say that those whom the state would regulate "can choose whether to comply, or the extent to which they comply." That financial institutions had compliance choices under FATCA has been obfuscated by proponents of IGAs who seem to think that, but for an IGA, all non-US financial institutions would have faced higher compliance burdens under FATCA. Not so. Some would have, undoubtedly, but others, especially smaller players, would have chosen not to comply. They would have chosen then either to face the consequences of non-compliance (30% penalty on US-source income), or to avoid the regime altogether (divest from US income sources). Those choices are taken away by IGAs, since under IGAs governments agree to enforce FATCA requirements on all of the financial institutions they regulate, taking away the "face the penalty or divest" choice. This completely changes the stakes for detection and punishment as between regulators and the regulated, and it also introduces a second-level compliance regime, at the international level (between states).

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